Opinion
Docket No. 78-2842.
Decided January 9, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Judy A. Hughes, Assistant Prosecuting Attorney, for the people.
Kenneth V. Miller, for defendant.
Defendant was convicted by jury on May 18, 1978, of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). On June 19, 1978, defendant was sentenced to prison terms of one to five years for armed robbery and two years on the felony-firearm count, and now appeals of right.
Defendant's allegation that his felony-firearm conviction violates the Michigan and United States constitutional prohibitions against being twice placed in jeopardy for the same offense (Const 1963, art 1, § 15; US Const, Am V) is without merit. Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979).
Defendant next maintains that his felony-firearm conviction under the aiding and abetting statute, MCL 767.39; MSA 28.979, was improper because application of the felony-firearm statute should be limited to the person who actually possessed the firearm. In the case at bar it is undisputed that only defendant's accomplice wielded the firearm used during commission of the crime.
This Court is presently not in harmony on the question of whether one not in actual possession of a firearm during commission of a felony may properly be convicted of the crime of "felony-firearm" as an aider and abettor. In People v Walter Johnson, 85 Mich. App. 654, 658; 272 N.W.2d 605 (1978), the majority opinion interpreted the felony-firearm statute "to require that a defendant personally carry or have in his possession a firearm" in order to justify a conviction under the felony-firearm statute. (Emphasis in original.) Judge N.J. KAUFMAN, dissenting, recognized no impropriety in applying the theory of accessory liability to an individual who does not actually possess a firearm utilized in an armed robbery.
This Court in People v Tavolacci, 88 Mich. App. 470; 276 N.W.2d 919 (1979), noted with approval that part of Judge KAUFMAN'S dissenting opinion, and then adduced further reasons of its own in support of its conclusion that one who does not actually possess the firearm utilized during commission of a felony may nevertheless validly be convicted of "felony-firearm" as an aider and abettor.
After carefully evaluating the Walter Johnson and Tavolacci opinions, we accept as more persuasive the legal reasoning enunciated in Tavolacci and in the dissenting opinion in Walter Johnson. We perceive no legal impropriety in the application to defendant of accessory liability under the felony-firearm statute.
Affirmed.
While concurring, I feel the following additional observations are appropriate. This writer, in People v Elowe, 85 Mich. App. 744, 748; 272 N.W.2d 596 (1978), wrote for affirmance of a conviction where the defendant, who was involved in a delivery of a controlled substance, did not use but did possess a firearm on his person during the commission of that felony. It was pointed out in Elowe that the purposes of the felony-firearm statute are to deter the use of firearms during the course of a felony and to punish those who possess firearms in the perpetration of a felony, thereby attempting to reduce the possibility of injury to victims, passersby and police officers.
Further, when based upon a sufficient factual basis, one not in possession of a firearm may be convicted as an aider and abettor to a felony-firearm offense. See my opinion in People v Tavolacci, 88 Mich. App. 470; 276 N.W.2d 919 (1979).
Finally in People v Powell, 90 Mich. App. 273; 282 N.W.2d 803 (1979), my dissent supports affirmance of convictions for armed robbery, MCL 750.529; MSA 28.797, and for possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). There was a substantial factual basis in Powell to support the acceptance of a guilty plea to aiding and abetting the offense of felony firearm.
The purpose of the firearm legislation is the same whether it involves use, possession, or aiding and abetting. The purpose is to deter criminal activity which so often causes injury and death to people who are victims of crime or otherwise innocent of any wrongdoing.